Motion for Change of Venue in New Mexico

Background

“The applicable question upon a motion for change of venue is whether or not there exists a reasonable apprehension that the movant will not secure a fair and impartial trial by a fair and impartial jury in the county, [...]; and this question is to be answered in the same manner as are fact questions in other cases[...].” (McCauley v. Ray (1969) 80 N.M. 171, 176.)

General Information for Complaints and Motions

Requirements for the Motion

The applicable venue statutes covers Change of venue in civil and criminal cases and provides for the Grounds Affidavits, and Notice as follows:

“The venue in all cases, both civil and criminal shall be changed, upon motion, to some county free from exception whenever the judge is interested in the result of such case, or is related to, or has been counsel for either party or when the party moving for a change shall file in the case an affidavit of himself, his agent or attorney that he believes such party can not obtain a fair trial in the county wherein the cause is then pending, either because the adverse party has undue influence over the minds of the inhabitants of such county, or the inhabitants of such county are prejudiced against such party, or because by reason of public excitement or local prejudice in such county in regard to the case or the questions involved therein, an impartial jury can not be obtained in such county to try the same or for any other cause stated in such affidavit;....” (Id.)

Timing of Motion

“Provided that any party in either civil or criminal cases at issue that desires a change of venue from the county in which said case is pending shall file his application for a change of venue on or before the first day of any regular or special term of court. Provided further, that if the application for change of venue is filed in vacation, five (5) days’ notice of the time and place of presenting the motion must be given to the opposite party or his attorney.” (State v. Fernandez (1952) 56 N.M. 689, 691-92 citing Section 19-503, 1941 Compilation.)

Evidence in Support of Motion for Change of Venue

Further, concerning the Evidence in support of motion, the requisite statute provides:

“Upon the filing of a motion for change of venue, the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion.” (State v. Fernandez (1952) 56 N.M. 689, 691-92 citing Section 19-504, 1941 Compilation.)

Standard of Review and Burdens of Proof

A reviewing court “will reverse a trial court's denial of a motion for change of venue only when it is shown that the trial court acted unfairly or committed a palpable abuse of discretion.” (Cook v. Anding (2008) 144 N.M. 400, 405 quoting McCauley v. Ray (1968) 80 N.M. 171, 176-77.)

The Court’s Decision

“It is obvious when a requisite motion is made, the venue must be changed or in the alternative, the court may require evidence in its support. It is equally clear that if a hearing is had thereon it is the duty of the court to determine the question by its findings.” (State v. Fernandez (1952) 56 N.M. 689, 691-92 citing State v. Alaniz, 55 N.M. 312.)

“New Mexico law continues to differentiate civil actions from special proceedings.” (Vandervossen v. City of Espanola (2001) 130 N.M. 287, 291-92 citing City of Tucumcari v. Magnolia Petroleum Co. (1953) 57 N.M. 392, 395-97 [holding that the change of venue statute applicable to ordinary civil actions does not apply to special statutory proceedings].)